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How to Apply for Probate: A Step-By-Step Guide

— January 17, 2023

Filing for probate can be difficult, and you may be very confused at first.

Having a loved one pass away is a difficult thing. You’re left with the memories you have of them, knowing you won’t be able to spend time together anymore. But aside from that, you may also be faced with the responsibility of probate. 

When a loved one dies, he or she may leave a will behind, naming someone as heir in it. If you’re the heir, then you may be confused regarding what should be done moving forward. Anything regarding probate may be new to you, so you want o make sure you do everything right. 

Well, let’s see how you can apply for a probate in this step-by-step guide. 

What Is Probate?

Probate is referring to the process of applying for the grant and the estate management document after someone passes away and leaves money and other possessions behind. Basically, when your loved one dies and they leave their estate, they do not directly pass on to you. There’s a whole process that you must go through before the authority to manage the estate is given to you. 

The probate process also includes paying off any debts the individual that passed away owed. 

Now, whether the deceased person has left a will or not will also influence the situation. When there’s a will, the executors will have to send an application for a grant of probate. Meanwhile, if there’s no will, the next of kin will have to send an application for a letters of administration grant. 

Each state has its own laws surrounding probate. Most of the time, they are similar, but there may be a few differences among some states too. 

Probate can be formal or informal. In other states, there may be a probate for small estates and probate for large estates. It’s important to be aware of the differences between states. 

Applying for Probate

Once you know that you need to file for probate, you need to learn how it’s done, especially if you are applying for it alone. Here are the steps you’ll need to take to apply for probate:

  1. Register the Loved One’s Death

The first thing you need to do is register the death of the family member. To do this, you must reach out to a registry office, preferably the one in the area where the individual passed away. There may be hospitals with registry offices as well. Bear in mind that you must register the death within 5 days of it occurring. 

You will need a death certificate copy of each asset that the deceased owned, such as their credit card, bank account, and others. This is one of the reasons why registering the death is so important. 

Following the registration, you will obtain a Certificate of Registration of Death. 

  1. Look for a Potential Will

Sometimes, a person will not leave a will, or they will have one but will not reveal it to their loved ones before the death. It’s crucial to find out if there is a will. Ideally, you should start looking for it as soon as possible, especially during the first week after the death. 

The will includes important details, such as who the heir is, what the funeral should be like, and so on. If nobody has been named as an executor, things can get quite tricky. The same can be said when someone cannot become the executor despite being named one. 

But if there is no will, the distribution of assets will happen differently, especially as each state has their own intestacy rules.

  1. Check the Value of the Estate

Before making any decisions regarding the estate and the inheritance task, it’s important to investigate the value of the estate. 

To do so, you should list down everything the deceased possessed, such as their mortgage, credit cards, properties and so on. Then, reach out to all building societies, banks and companies and find out the value of the assets. Bear in mind that joint assets should also be valued. 

And if any gifts were made during the 7 years prior to the person passing away, it should also be considered when you value the estate. 

  1. Apply for Probate

Now, it is time to apply for probate. To do so, you must file a petition with the court. You’ll need a death certificate copy for this, as well as a copy of the will. Before opening the probate, the court will look over all the documents you provided and device who should be the executor of the estate.

Lawyers looking at documents; image by August de Richelieu, via
Lawyers looking at documents; image by August de Richelieu, via

In situations where the will already picked an executor, the court will generally approve of this. Obviously, when nobody is named as executor in the will or when the named person cannot act as executor or doesn’t want to, someone else will be chosen.

  1. Issue a Bond

When someone becomes an executor, a bond will have to be obtained to keep them safe from potential claims for fraud. When they make errors that affect the heirs or estate, the bond will cover the costs. 

  1. Sending Notice to Creditors

An executor will have the responsibility to send notice to creditors as soon as they’re named. Each state has its own laws regarding this process. Some require sending letters to the creditors, while others simply require publishing notices in the local newspaper. 

  1. Paying Estate Taxes

Paying estate taxes is a must for executors. The individual has the responsibility to file any personal or business tax returns, but also pay any money amounts the deceased owed. It’s an important step before the distribution of the estate.

  1. Distributing the Estate

The executor will then have to distribute the estate properly to the named heirs once everything is done. The deceased’s property may have to be distributed to a new owner, or funds must be given to different family members. 

Final Thoughts

Filing for probate can be difficult, and you may be very confused at first. In New York, most estates will have to go through probate. The best thing to do if you find yourself in a difficult situation is hire a New York probate lawyer to help you. 

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